Offering staff sick pay over and above SSP to ‘front-line’ staff is relatively rare even for larger organisations, but it is still common enough for the moves by these companies to garner a lot of press attention; the vast majority of it negative.

The likely result unfortunately will be that many employees may choose not to tell their employer that they are absent for COVID-related reasons and give other reasons for their absence. This was more likely to be the case during the first part of 2022 as the rules on providing medical evidence in the form of a GP’s ‘fit note’ were relaxed, such that employees could self-certify any sickness absences of up to 28 days and still qualify for SSP. These relaxations have been removed from 25 March 2022. In a similar vein but of less direct impact to these issues is that current proposals will allow for ‘fit notes’ to be issued digitally without a physical signature from 6 April 2022.

A policy treating unvaccinated employees less favourably may be indirectly discriminatory

Many commentators have raised concerns that a policy treating unvaccinated employees less favourably may face challenges for being discriminatory. The reason for this is there is already clear evidence that certain religious groups and certain ethnic groups are less likely than others to be vaccinated. Accordingly, this opens the door for an argument that the policy is indirectly discriminatory. If it could be shown that the policy places any such group at a substantial disadvantage, it would be unlawful unless it could be shown to be a proportionate means of achieving a legitimate aim. This could well prove difficult in the absence of clear evidence of the effectiveness of such a policy on reducing staff absences or protecting health and safety. Saving costs alone is rarely accepted as a legitimate aim in such claims.

On top of any legal risks, employers should also be aware of the reputational damage that could be caused by such a move, especially where the last 12 months has seen many retail employers struggling to attract staff for lower paid positions.

Any employers considering such a move will need to think very carefully about whether it is a proportionate and effective way of addressing the very real problems of increased staff absence. Many large retail employers already suffer with attacks to their reputation in connection with their treatment of low-paid employees (zero hours contracts anyone), and limiting pay for genuine sickness absence is only likely to add fuel to this fire.